Tag: NN DN and MEN v. ICBC

Loss of Companionship "Services" in BC Wrongful Death Claims


There is a general prohibition preventing damages being awarded for “loss of companionship” in BC Wrongful Death lawsuits.  However, if the companionship can be characterized as a “service” which can be quantified and needs replacement damages can be awarded.  This was demonstrated in the arbitration decision of NN, DN and MEN v. ICBC which I summarize in my continued efforts to create a searchable ICBC UMP claims database.
In NN, DN and MEN v. ICBC, the Claimant’s spouse was killed in a motor vehicle collision.  The at fault driver was uninsured.  The Claimant sought damages under BC’s Family Compensation Act.  It was agreed that the Claimants were insured for UMP coverage with ICBC.  The parties agreed to have damages assessed though private UMP arbitration.
At the time of his death the deceased was separated from his spouse for many years.  Despite this he had a good relationship with her.  She suffered from vascular dementia and lived in a group home.  He visited her on a daily basis and took her out and spent time with her.  She sought damages for “loss of companionship services“.  ICBC opposed arguing nothing was recoverable as “loss of spousal companionship is not a compensable head of damage in a family compensation claim“.
Arbitrator Donald Yule agreed that while the “loss of spousal companionship” prohibition exists, it does not extend to services.   Arbitrator Yule accepted expert evidence that these companionship services were “important to (the spouse’s) quality of life” and assessed damages for this lost service at $35,000.  In doing so Arbitrator Yule provided the following helpful reasons:
52.   This case helps to clarify that it is the “services” aspect of the deceased’s conduct that is compensable.  It does not mater that the service is motivated by love and affection for a spouse.  Household services are also motivated by care and affections.  The replacement of them is clearly compensable.  Mrs. N’s claim is for compensation services, not merely the loss of companionship.  In Bianco Estate the claim was for loss of companionship only.  The plaintiffs were seeking an “at large” lump sum award.  Hence, the issue as to whether the award was pecuniary or non-pecuniary.  There was no attempt in  that case to attach an economic value or cost to the lost services aspect of companionship.  The judgement at paragraph 12 seems to leave open the possibility of a compensable claim where substitute or replacement services result in an actual pecuniary loss.
53.  It seems to me that one aspect of Mr. N’s companionship is the loss to Mrs. N., in terms of the pleasure and comfort that derives from the continuing association with a long time friend and spouse.  That loss is irreplaceable; no economic value can be attached to it and it is not compensable.  That is the solatium aspect.  But another aspect of MR. N’s companionship is the loss to Mrs. N. of having someone to take her out of the Lodge on a daily basis; to encourage and facilitate her maintaining mobility as long as possible; to provide a ‘break’ from the institution; to provide an opportunity to supplement her food intake; and to provide social stimulation to the extent she is able to participate in it.  This is a loss that can be provided by substitute services….There is certainly a health and medical benefit aspect to these services.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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